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Magna Carta: 800 Years Young – A paper by Nicholas Cowdery AM QC

WHERE DID MAGNA CARTA COME FROM?

In the known early history of what is now called England, Kings held sway. There was competition between Kings of different areas, between Kings and nobles and between Kings (and nobles) and their subjects. The Christian Church of Rome also played a significant role in this. Over time, laws developed to regulate these matters, but they were not in England (until at least 594) written and recorded laws (unlike much earlier in Babylon, the Holy Land, among the Germanic peoples and elsewhere) – they survived in the memory and retelling. That is significant because it is often not the precise letter of the early law that is important, but the intent behind the written word.

Laws began as dispute resolution mechanisms among the people and were appropriated by Kings claiming to be acting in the interests of peace. The places of peace – the meetings or courts (if the Kings attended) – became the places for the enforcement of the laws – our modern “courts”. There were not, as yet, police or legal professionals working in criminal justice. In securing peace, violence was to be prevented and suppressed. As often as not, the best means of preventing violence was thought to be the infliction of greater violence.

Every community and its lord needed to have a basic understanding of the law, as did the King. There was a communal and largely unwritten understanding of what was or was not lawful. Sometimes penalties were also fixed for specific infractions.

At the time of the 594 code of Aethelbert, King of Kent, the written versions of laws claimed not to make new laws, but to define customs and practices already in place – so there was already an existing body of what might be called common, or perhaps natural, law in existence by the time it was recorded in writing. That was reaffirmed in the rather haphazard and selective codes of later Kings of Kent, of Ine, King of Wessex (694), Alfred the Great in the 9th Century and many others through to King Cnut around 1026.

The Norman Conquest in 1066 brought all property under the King, but otherwise it embedded the pre-existing “English” laws which William acknowledged. A tension was created between the force of conquest and obedience to the old law.

From around 1100 it is known that English law was again operating routinely. The Domesday Book from the survey of 1086 shows the survival of Anglo-Saxon laws and records and there are available other collections of laws from those times. The Laws of King Henry I of 1115 and the so-called Laws of Edward the Confessor compiled around 1140 (a century after Edward) were significant in the later drawing of the document sealed in 1215.

In 1100 Henry I came to the throne, supported by the barons. He was the youngest of William’s sons so his claim was not strong and he was obliged to make a number of concessions which were 3 embodied in the Coronation Charter. He promised to uphold the existing laws of earlier English kings and sought to gain popularity by blackening certain of his predecessors while promising to uphold the “good old” laws and traditions of the past. The Coronation Charter was later used to bind successive Kings and was very influential in the drawing of the 1215 document.

In the latter months of 1214 the Coronation Charter was brought out of the archives by Stephen Langton, Archbishop of Canterbury (who had begun to refer to it in 1213) and circulated widely. It was brought to Runnymede on 15 June 1215. It was used to bind King John to the “good old” laws of his great grandfather, Henry I.